Anti-Kickback Act (Procurement) Elements of the Offense

A jury in a procurement kickback case is asked whether the government has proved the elements of 41 U.S.C. § 8702 beyond a reasonable doubt. In the Eastern District of Virginia and elsewhere in the Fourth Circuit, the instructions delivered at the close of evidence are drawn from the instructions the district court settles with the parties, adapted to the prohibition charged.

Reading a case in the language of those elements is the quickest way to see where the government is relying on documents and where it is relying on inference. The two are attacked differently.

On this page

The Three Prohibitions

The statute contains three separate prohibitions, and an indictment may charge one, two, or all of them. The first covers providing, attempting to provide, or offering to provide a kickback. The second covers soliciting, accepting, or attempting to accept a kickback. The third covers including the amount of a kickback, directly or indirectly, in the contract price charged by a subcontractor to a prime contractor or to a higher-tier subcontractor, or in the price a prime contractor charges the United States.

The first two reach conduct regardless of whether anything was ever paid or delivered, because attempts and offers are within them. The third is different in kind: it requires proof that the cost actually entered a price charged upward, which makes it a records question rather than an intent question.

Kickback, Purpose, and the Contract Connection

The definition used in this part of the code is wide. It covers money, fees, commissions, credits, gifts, gratuities, things of value, and compensation of any kind, provided directly or indirectly to a prime contractor, a prime contractor employee, a subcontractor, or a subcontractor employee. Almost anything of value can satisfy the first part of the definition, so the contest is normally about the second part.

That second part is purpose: the value must have been provided for the purpose of improperly obtaining or rewarding favorable treatment. Purpose is proved by inference from timing, concealment, departure from internal process, and changes in award or pricing patterns. It is also the element most readily met with contrary evidence drawn from the same records.

The connection element requires that the favorable treatment relate to a prime contract with the United States or to a subcontract relating to a prime contract. Commercial work and work unrelated to a federal prime sit outside the statute, and in a diversified business the allocation of a relationship across contract types is a genuine question rather than a formality.

The Mental State for Criminal Liability

Criminal liability under this chapter requires that the person acted knowingly and willfully. That standard does more work here than in many statutes, because so much of the underlying conduct is ordinary commercial activity that becomes unlawful only through purpose. A policy breach, a documentation failure, or an approval given without close reading is not the same as knowing and willful conduct.

Civil liability under the same chapter is available on a lesser showing, and administrative recovery by withholding or offset requires no litigation at all. That structure is why the same facts can produce a civil resolution against a company and no criminal charge against anyone, and it is why the mental state element deserves attention from the outset rather than only at trial.

Frequently Asked Questions

Does the government have to prove a payment was made?

Not for the first two prohibitions. Offering to provide and attempting to accept are both within the statute, so an agreement or a solicitation can satisfy the conduct element with nothing changing hands. The third prohibition is different, because it requires proof that a kickback amount was actually included in a price charged upward.

Does a public official have to be involved?

No. The statute is framed around prime contractors, subcontractors, and their employees. The paradigm case involves a subcontractor providing value to a prime contractor employee. Nobody in that transaction is a public official, which is why the statute is often overlooked inside companies that would never describe their conduct as bribery.

What makes treatment favorable and improper?

Favorable treatment covers getting on a bid list, receiving award of work, obtaining better terms, or receiving lenient treatment on performance issues. Improper is the qualifier that carries the element. Ordinary commercial arrangements such as negotiated discounts, volume rebates, and documented commissions are not improper, and the difference is established by evidence of purpose.

Can a company be liable for what an employee did?

Companies as well as individuals are within the statute, and the two are often pursued together, though not always on the same track. A company may face civil or administrative exposure where the criminal mental state cannot be established against anyone. How an allegation is handled internally affects that analysis considerably.

Does the pricing element require an overcharge?

It requires that the amount of a kickback was included, directly or indirectly, in a price charged to a higher tier or to the United States. That is a cost records question. Where the payment was absorbed as a selling expense, or where price was set by competition and did not move, the element is contestable on the contractor’s own books.

Why do the instructions a jury receives matter before trial?

They fix the language the jury will hear, which determines what evidence is relevant and what a motion should target. Working from the instructions early tends to reveal which prohibition the government is actually relying on and which element it is proving by inference, and that shapes decisions about motions and about resolution.

Mr. Sris and the Firm’s Of Counsel Attorneys

Reading a procurement kickback case in the language of the elements usually shows that the government is relying on purpose, which is the element most open to contrary evidence from the same records.

Mr. Sris, Owner and Founder of Law Offices Of SRIS, P.C., is a former prosecutor and founded the firm in 1997. He is admitted in Virginia, Maryland, the District of Columbia, New Jersey, and New York. His background at George Mason University in accounting and information systems is applied to complex financial and technology-related cases, which is the category most federal procurement and public-integrity matters fall into. Mr. Sris and the firm’s Of Counsel attorneys, who contract directly with the firm, work on federal criminal matters together.

The firm represents contractors, subcontractors, purchasing and sales personnel, and company officers in these matters. To discuss an Anti-Kickback Act matter, call (888) 437-7747 to request a consultation.

Disclaimers

This page describes the elements of a procurement kickback offense under 41 U.S.C. § 8702 in general terms for people trying to understand a federal process. It is not legal advice, and reading it does not create an attorney-client relationship with Law Offices Of SRIS, P.C. Federal statutes and the decisions interpreting them change over time, so confirm anything stated here against the current statutory text with counsel before acting on it.

Every federal matter turns on facts that belong to that matter alone. Case results depend on a variety of factors unique to each case. Results may vary.

Attorney responsible for this advertising: Mr. Sris. Law Offices Of SRIS, P.C. Call (888) 437-7747 to request a consultation; the firm’s intake line is staffed 24/7.

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These are the elements the government must prove. Our page on anti kickback act procurement charges covers the offence as a whole.